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Too much law suffocating America

By Philip K. Howard, Special to CNN
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4 ways to fix the legal system
  • Washington's paralysis is becoming intolerable, says Philip Howard
  • He says the government is burdened by too much law and too many entitlements
  • The health care system can't provide quality care efficiently, he says
  • Howard says legal reform would force officials to take responsibility for their actions

Editor's note: Philip K. Howard is founder and chair of Common Good, a nonprofit, nonpartisan legal reform coalition and the author of "Life Without Lawyers: Liberating Americans From Too Much Law (Norton 2009)." He is vice-chairman of the law firm Covington & Burling and has been an adviser to leaders of both major parties. Howard gave a talk at the TED Conference earlier this month in Long Beach, California. TED is a nonprofit, named for its original focus on technology, entertainment and design and dedicated to "Ideas worth spreading."

New York (CNN) -- The paralysis of Washington is becoming intolerable.

Last week's headlines tell the story:

• President Obama appointed a deficit-reduction commission to recommend the hard choices that our elected representatives won't make.

• A popular Democratic senator, Evan Bayh of Indiana, announced he will not stand for re-election, citing "too much partisanship and not enough progress."

• Washington can't even spend stimulus money -- The Government Accounting Office reported that barely 10 percent of a $5 billion program to weatherize almost 600,000 homes had been spent because of red tape.

But what's the source of this paralysis? It's certainly true that there's excess partisanship, and special interests have too much influence. Both parties are guilty, with Democrats selling out to the trial lawyers to prevent any malpractice reform and Republicans engaging in scare tactics about "death panels." But I have a different take: The partisanship is mainly a symptom of a deeper powerlessness. Politicians posture and point fingers because they've learned it's impossible to take responsibility.

Washington is immobilized by decades of accumulated law -- more than 100 million words of binding statutes and regulations. Like sediment in the harbor, these regulations and entitlements have piled up to the point where it's practically impossible to get anywhere.

The stimulus money for weatherproofing homes, for example, couldn't be spent last year because a 1931 law, designed to keep union wages high, requires an army of federal bureaucrats to set wages in 3,000 different localities before anyone can start caulking those windows. No kidding -- that's what federal law requires.

Let's take health care reform. The bills are a jumble of new programs, without any overarching principle that might cut down the horrible, inefficient bureaucracy that patients and doctors endure all day long. It's hardly surprising that Americans don't support the bills.

Will piling 2,000 pages of new law on top of the massive bureaucracy fix American health care? But there's a reason Congress hasn't come up with a coherent proposal. Congress is shackled by laws of its own making -- by entitlements that politicians are scared to alter even if the result is to make health care more affordable for everyone.

Politicians are bogged down in this vast legal quicksand, proposing more laws to deal with failures that are caused by the accumulation of too much law. Leadership requires freedom to take responsibility.

Over the years the accretion of programs and entitlements has disconnected our leaders from this indispensable ingredient of all human accomplishment. No official, not even the president, has authority to make needed choices. Responsibility has been suffocated by law.

The destruction of responsibility is a progressive disease, dragging the rest of society down with it. Ask any teacher or doctor. They're immersed in law all day long, preventing them from using their common sense to do what they believe is right.

The only solution is to dredge the Potomac. Washington must start over, area by area, and simplify law so that officials have a chance of applying it sensibly to meet current needs. Individual responsibility should be the litmus test for all laws and programs. Who has responsibility to meet our public goals? Who has responsibility to hold them accountable?

The only way to eliminate the massive waste in American health care -- estimated to be $700 billion to $1 trillion every year -- is to walk away from suffocating bureaucracy, and replace it with incentives for prudent health care decisions.

Today, neither patients nor providers have any incentive to be responsible in their use of health care resources. Bureaucratic reimbursement formulas drive doctors and hospitals to make treatment decisions based on what bureaucratic guidelines will reimburse -- not care that's actually needed. The breakdown of judicial responsibility to keep lawsuits reasonable causes doctors to squander billions in defensive medicine.

Universal distrust of justice has chilled the open interaction needed for safe hospitals. Thousands of tragic errors occur because doctors and nurses are reluctant to speak up when they suspect something is amiss -- "Are you sure that's the right dosage?" -- because they're not certain, and they don't want to be legally responsible.

Rebuilding health care based on the principle of individual responsibility requires no genius. The basic changes are just common sense: (1) pay doctors based on overall results, not piecework reimbursement; (2) require patients who can afford it to pay a meaningful portion of their care; (3) reward patients for healthy lifestyles; (4) minimize defensive medicine by creating a reliable system of medical justice; and (5) replace the bureaucratic overhead and complexity with periodic audits to make sure people aren't cheating.

Washington is broken. Everyone knows it. Responsibility is nonexistent. But Washington is unlikely to clean out its legal stables. Changing things is too scary. Political leaders and special interests would rather stay with the devil they know -- at least so long as they are secure in their jobs.

Responsibility is simple. That's why it's so effective. Restoring responsibility, however, requires a kind of revolution -- an organized, coherent movement to replace existing bureaucracy with new goals and individual mandates to achieve them.

Congress must be forced to clean out decades of accumulated bureaucracy and entitlements. We'll never get a government that balances the budget or makes health care affordable until our leaders can take responsibility to meet these challenges.

The opinions expressed in this commentary are solely those of Philip Howard.